Request to Modify Summary Suspension Administrative Rule

The following email was sent to Indiana Horse Racing Commission Executive Director Joe Gorajec, Assistant Executive Director Deana Pitman, General Counsel Lea Ellingwood, and Chairman Bill Diener.

"Pursuant to ‘71 IAC 2-12-1 Procedures,’Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider the amendment of '71 IAC 10-2-3 Summary suspension' to conform with IC 4-21.5 Administrative Orders & Procedures Act (AOPA). Please consider this correspondence as IBOP’s petition for the IHRC to amend 71 IAC 10-2-3 by striking 71 IAC 10-2-3(c). Our view is that this subsection directly contradicts portions of IC 4-21.5-4 Special Proceedings; Emergency and Other Temporary Orders, which is attached for your review and reference. IBOP would appreciate the change to this administrative rule be considered as an agenda item at the next regularly scheduled IHRC meeting.

Both IC 4-31-12-15(a)(2) and IC 4-31-13-2(a)(2) provide that judges and stewards may sanction a licensee with "A temporary order or other immediate action in the nature of a summary suspension if a licensee's actions constitute an immediate danger to the public health, safety, or welfare." We feel an order of this type would then be governed by IC 4-21.5-4 which is a view reinforced by the language used in 71 IAC 10-2-3(a) which is copied below.

71 IAC 10-2-3 Summary suspension
Authority: IC 4-31-3-9
Affected: IC 4-21.5-4; IC 4-31-13

Sec. 3. (a) If the judges determine that a licensee's actions constitute an immediate danger to the public health, safety, or welfare, or are not in the best interest of racing, or compromise the integrity of operations at a track or satellite facility, the judges may summarily suspend the license pending a hearing pursuant to the provisions of IC 4-21.5-4.
(b) A licensee whose license has been summarily suspended by the judges is entitled to a hearing following a written request by the licensee.
(c) The judges shall conduct a hearing on the summary suspension in the same manner as other disciplinary hearings. At a hearing on a summary suspension, the sole issue is whether the licensee's license should remain suspended pending a final disciplinary hearing and ruling.
(d) Notwithstanding the provisions of 71 IAC 10-3-20, the commission delegates to the executive director the authority to summarily suspend licenses at any time that a live race meeting is not being conducted on association premises or when the judges are not otherwise available. The commission delegates to the executive director the authority to summarily suspend licenses at satellite facilities at any time. In the event of a summary suspension by the executive director and if the licensee makes a written request for a hearing, a hearing on the summary suspension shall be conducted by the commission or an administrative law judge as quickly as is practicable. (Indiana Horse Racing Commission; 71 IAC 10-2-3; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1198; emergency rule filed Jan 27, 1995, 3:30 p.m.: 18 IR 1505; emergency rule filed Nov 30, 1995, 1:00 p.m.: 19 IR 688; emergency rule filed Mar 25, 1997, 10:00 a.m.: 20 IR 2162; emergency rule filed Feb 13, 1998, 10:00 a.m.: 21 IR 2426; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)

Neither IC 4-31-12-15(a)(2) or IC 4-31-13-2(a)(2) make any direct reference of an authorization for the judges or the stewards to issue a suspension without a hearing. In a scenario where a summary suspension of a person’s license is issued without first having a hearing, we believe the order would be authorized and issued under IC 4-21.5-4-2(a)(1), and therefore, any subsequent hearing would be governed by IC 4-21.5-4-4. In other words, if 71 IAC 10-2-3(a) is an accurate representation of the IHRC's statutory responsibilities, which we believe it is, then 71 IAC 10-2-3(c) should not exist.

What IC 4-21.5-4-4 promises is an evidentiary hearing “as quickly as is practical" with an administrative law judge having the ability to determine one of five potential outcomes; the judges' or stewards' decision is either “voided, terminated, modified, stayed, or continued.” We feel the language in 71 IAC 10-2-3(c) directly contradicts IC 4-21.5-4-4 which states:

IC 4-21.5-4-4
Hearings
Sec. 4. Upon a request by a party for a hearing on an order rendered under section 2(a)(1) of this chapter, the agency shall, as quickly as is practicable, set the matter for an evidentiary hearing. An administrative law judge shall determine whether the order under this chapter should be voided, terminated, modified, stayed, or continued.
As added by P.L.18-1986, SEC.1.

Thank you for your consideration of this matter.


Jim Hartman
IBOP Vice-President


CC: Chairman Diener
Vice-Chair Schaefer
Commissioner Grimes
Commissioner Barclay
Commissioner Schenkel"

The file mentioned in this email "IC 4-21.5-4 Special Proceedings; Emergency and Other Temporary Orders" can be found at http://freepdfhosting.com/503b9c513b.pdf